Zach Heiden ’95 Gives Talk on Roberts’ Court

The legal director of the American Civil Liberties Union in Maine, Zach Heiden ’95, visited Bowdoin recently to speak about the first nine years of the Supreme Court under Chief John Roberts. President George W. Bush appointed Roberts to the court in 2005.

Heiden’s talk focused on four main issues of the law in which Roberts has made a significant impact: free speech, racial justice, technology and privacy, and criminal justice.

Heiden described a variety of cases that highlight Roberts’ positions on these issues, including Citizens United v. Federal Election Commission. “I believe the Roberts’ court has had the most expansive reading of the first amendment’s free speech protection in our nation’s history,” he said.

The entities that have prevailed in the court’s interpretations include videos that depict animal cruelty, violent video games, picketers protesting gay rights outside soldiers’ funerals, and corporations that want to spend money to influence elections, Heiden said.

“But,” he added, “not every litigant with a free-speech claim has prevailed at the U.S. Supreme Court in the last nine years.” He reflected on the 2009 Humanitarian Law Project v. Holder case, which focused on an organization that claimed it defended peaceful advocacy. The Humanitarian Law Project argued that it had wanted to teach peaceful conflict resolution to two groups identified by the state as terrorist organizations. The Supreme Court decided that the organization could not engage in this type of speech because it would provide unlawful support to terrorists.

At this point, Heiden said that the ACLU got its start almost a century ago by defending the free-speech rights of people who had been convicted of sedition and imprisoned for peaceful advocacy. “Those cases gave birth to our modern law of free speech,” he said. “Now nearly 100 years later, we’re still fighting these same fights and still contending with judges who place government expediency over fundamental freedoms,” he said.

In regards to racial justice, Heiden argued, the Roberts’ court has narrowed protections to racial minorities. He cited the 2007 case of the Parents Involved at Community Schools v. Seattle School District No. 1. The case looked at the constitutionality of school placement programs that took into account the race of students to achieve racial balance in schools. But the programs were challenged by parents of white children who were not allowed to attend their school of choice. The Supreme Court ruled that the education programs violated the equal protections clause because they used race as a factor to prevent race discrimination. Yet, Heiden said, there is an arguable difference and a legal history of discerning between “pernicious and benign use of race.”

In regards to technology and privacy, Heiden said the court’s stance has been encouraging. For instance, the Supreme Court justices ruled in the 2014 Riley v. California case that cellphone searches should be treated like a search of a home, and that law enforcement must seek a warrant before searching the contents of an individual’s phone. “I think this is the most important the court has yet decided on how contemporary developments in technology bear on longstanding commitments to privacy,” he said.

Much of the Supreme Court’s time is spent on criminal law issues, Heiden noted. “The theme that emerged for me as I looked back over the past nine years was the way that at the Supreme Court level the law has been informed by international law and human rights norms and standards,” he said.

Heiden concluded his talk saying Roberts’ court has continued a Supreme Court trend of elevating the state over individuals. “Too often in our constitutional cases, abstract principals are allowed to crowd out human concerns,” he said. “My hope for the future of the Roberts’ court is that it will keep in mind the differences in the experiences of the people in front of them, in particular prisoners, in particular students.

I hope that when we gather a decade from now to look back on the first 20 years of the Roberts court, we can say he has demonstrated an understanding of the positive role that law can play in shaping society for the betterment of all its members.”

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